Personnel and disciplinary record, subject: Joseph Bongiovanni

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

The releasable personnel records of Joseph Bongiovanni, a former deputy in the county sheriff’s office, as well as all disciplinary records that identify Bongiovanni as a subject. For specificity and to rule out duplicates, Bongiovanni was a deputy from approximately 1995 to 1998.

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.

In accordance with the Freedom of Information Law as it has been amended by aforementioned legislation, records that may be released include "the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

Under precedent, Freedom of Information Law uses a "balancing test" method of weighing privacy interests favoring redaction/denial against the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Bongiovanni is a public figure who has been named in a federal indictment as a member of a narcotics conspiracy who monetized his position at the Drug Enforcement Administration to demand bribes in order to protect other members of the conspiracy.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

T. McElwee

To whom it may concern:

Regarding my Freedom of Information Law request to the Erie County Sheriff's Office (text attached as PDF), the Records Access Officer has not responded to two emails (the initial and a reminder email) within the statutory limit of 5 business days for such a response.

I am forced to send an appeal on grounds that the Records Access Officer's failure to acknowledge receipt of a lawful Freedom of Information Law request within the mandated period of five (5) business is a constructive denial.

I will cite the New York State Department of State Committee on Open Government advice:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also note that under Freedom of Information Law, the agency "is required to respond to the appeal within ten business days of the receipt of the appeal by granting access to the records or fully explaining the reasons for further denial in writing. See FOIL §89(4)(b). If a determination on the appeal is not rendered within ten business days, the failure to do so constitutes a denial of the appeal."

I am also advised by Committee of Open Government that continuing to constructively deny after appeal opens the agency to lawsuit under Article 78 of the Civil Practice Law and Rules, and the possibility of court costs being recovered at the agency's expense.

-T. McElwee

To: Timothy B. Howard, Sheriff, in capacity as chief executive and FOIL Appeals Officer

Re: Freedom of Information Request, "New York Freedom of Information Law Request: Personnel and disciplinary record, subject: Joseph Bongiovanni"

This email is regarding my Freedom of Information Law request to the Erie County Sheriff's Office (text attached as PDF) requesting the personnel and disciplinary record of former Deputy Joseph Bongiovanni.

I sent this request by email to the listed Records Access Officer, Chief John W. Greenan, at the given email address john.greenan@erie.gov on 6/17/2020. As of today, 7/8/2020 I have not received any message of acknowledgment to two emails (the initial request on 6/17 and a reminder email 6/24).

Under the Freedom of Information Law, I am invoking my right to make an administrative appeal directly to the Sheriff, (as the named chief executive of the Office and de acto FOIL appeals officer) to acknowledge and fulfill the record request within a defined timetable.

This appeal is made on the grounds that the Records Access Officer's failure to acknowledge receipt of a lawful Freedom of Information Law request within the mandated period of five (5) business constitutes a constructive denial.

I will cite the New York State Department of State Committee on Open Government advice regarding constructive denials of Freedom of Information Law requests:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also note that under Freedom of Information Law, the agency "is required to respond to the appeal within ten business days of the receipt of the appeal by granting access to the records or fully explaining the reasons for further denial in writing. See FOIL §89(4)(b). If a determination on the appeal is not rendered within ten business days, the failure to do so constitutes a denial of the appeal."

I am also advised by Committee of Open Government that if the agency (the Erie County Sheriff's Office) continues to constructively deny access to records after the appeal is sent, it opens the agency to lawsuit under Article 78 of the Civil Practice Law and Rules and the possibility of court costs being recovered at the agency's expense.

Please find attached as PDF's 1) the text of my request for records and 2) the Committee on Open Government's FAQ.

I thank the Sheriff for his time and prompt reply.

-T. McElwee

Ms. Weatherbee:

I have to say that I strongly doubt that the Sheriff's Office has neither personnel nor disciplinary record. I will use this instance to try to "perfect" the request without appealing by reiterating the request, with some additional explanation:

I am requesting the personnel and disciplinary record of former Deputy Joseph Bongiovanni, who is documented by multiple sources as working at the Erie County Sheriff's Office. Patrick Connelly of Buffalo Business First documents his service as a deputy starting 1995. Connelly/BBF also states that he worked for the DEA starting 1998.

I reiterate: my request is for personnel and disciplinary records. While my request for a disciplinary record is somewhat self-explanatory and it is plausible that Bongiovanni had no such record in his brief tenure, I wish to state explicitly that personnel records are any records pertaining to Bongiovanni's hiring or which evaluated his continued employment (which have likely been retained).

In this instance, I believe it is also worthwhile to note that if Bongiovanni was given a letter of recommendation for his employment at DEA on official letterhead, this also constitutes an official record under FOIL.

I will now elaborate further: if records dating from this period (1995-1998) have been destroyed or relocated for storage, I believe the documentation of the documents' destruction or removal should be considered a responsive record.

I also wish to reiterate that CIvil Rights Law 50-A has been repealed in its entirety; the agency cannot invoke its blanket provisions to deny production of records. If the Sheriff's Office wishes to assert some cause for denying production, it must cite the specific FOIL exemption it is invoking. While some information may not be disclosed as potentially invasive to privacy (ex: Social Security numbers or personal addresses), these should be handled through specific redactions of material and not blanket denials of the larger document.

This office should also understand that asserting a FOIL exemption is also appealable both administratively and through Article 78 proceeding.

Thank you,
T. McElwee

To whom it may concern:

As mentioned earlier, I'm making a FOIL request, and seeking actual documentation of any kind. Whatever documentation you are citing as confirming the claim of employment, this is a public record subject to FOIL, and I request a copy.

If it is a tabular format, then please export it to Comma Separated Value format (a .CSV file); if it is not, a screenshot or screenshots exported to Portalable Document Format (.PDF) is acceptable.

It is no longer true that these records may be withheld in toto as Civil Rights Law 50-A, which has been repealed in its entirety. To withhold information (whether through denial or redaction) the Agency must cite a specific legal exemption.

-T. McElwee